This appeal under section 410, Cr. P. C.. Through Jail has been preferred by the appellant against the judgment dated 30th October, 1978, of the learned Sessions Judge, Dadu whereby be convicted the appellant under section 302, P. P. C. And sentenced him to imprisonment for life and to pay a fine of Rs. 1,000 or in default . Of payment of fine to undergo R. I. For six months more. He was also directed to. Pay a compensation of Rs. 5,000 to the heirs of the deceased failing which he shall suffer imprisonment for 6 months.
2. The facts of the prosecution case are that Hamzo son of Haji, caste Tunio resident of village Andal Tunio Taluka Mehar of District Dadu lodged his F. I. R. On 12-5-1972 at 11-00 a.m. At Police Station, Thariri of District Dadu which reads as under :- "I am residing in village Andal Tunio. Luqman son of Noor Muhammad is my cousin and residing with me. Today i. e. on 12-5-1972 in the morning I went to my land near the village and my son Abdul Khalique, went to his shop. Cousin Luqman, remained in the house and he was not feeling well. At about 9-00 a.m. I heard cries from the houses. I went there and found that my cousin Luqman was lying in the street near the house of Ramzan Tunio. He had received injury on his head, from which he was bleeding and a little brain had come out. He was unconscious and was not in a position to speak. My son Abdul Khalique and others, namely Ghulam Qadir, Amir Bux Ghano, Mst.
Amnat, Mst. Dhayani and others were standing there. On enquiry, Mst. Dhayani and (paper torn) said, 'At present Bakshal son of Hussain, (2) Ali Nawaz son of Budho, (3) Munno son of Budho, (4)
Ishaque son of Nabi Bux Tunio were fixing hedge in-between the street between our houses and that of Buxial and others. We prevented them not to fix the hedge there as we will experience difficulty in the passage. At that time, there was no male member present in our house, therefore we complained of it to Luqman and requested him to remonstrate Bakhshal and others. He came and asked Bakhshal not to fix the hedge there as the residents of other houses will feel difficulty.
Upon this, Bakhshal abused him and told him as to who he was to prevent them. Upon this Luqman (paper torn) to Bukhshal (paper torn) which hit Luqman as a result of which Luqman fell down, and we raised cries (paper torn) Bakshal and others tried to run away. Bakhshal took the hatchet and gave its sharp side blow to Luqman which hit Luqman (paper torn) whereupon he raised cries and fell down. Accused Bakhshal (paper torn) "Abdul Khalique, Ghulam Qadir Tunio, Amir Bux Chano (paper torn) gave "hakals" to the accused whereupon accused (paper torn) other blow and ran away towards his house. Ali Nawaz and others left the hedge and ran away to their houses. We narrated above facts to the witnesses who came there. On having these facts, I got the injured laid down on a cot and kept him under the shadow of the tree and have come here to lodge the report that the injured is still unconscious. I lodge complaint. Justice be done."
3. Atta Muhammad A. S. 1. P. Recorded the F. I. R. Exh. 23 and proceeded to the scene of offence. He saw injuries on person of the injured Luqman and prepared such Mashirnama Exh.
56. Luqman was unconscious and unable to make any statement. He therefore referred him to the Medical Officer 'Radhan' for examination, treatment and certificate. He inspected the place of incident which was pointed to him by P. W. Hamzo. It was situated in front of house of Ramzan Tunio in village Andal Tunio. He secured the blood-stained earth from the place of incident and sealed it. He also secured a shoe from the same place and prepared such mashirnama Exh. 27 in presence of mashirs Jumo and Abdul Karim. He then recorded the statements of P. Ws. Mst. Amnat, Mst. Dhayani, Ishaque, Abdul Khalique and Amir Bux. He arrested the accused Buxial on 13-5-1972 and prepared such mashirnama Exh. 28 in presence of mashirs Junco and Abdul Karim. He interrogated the accused who voluntarily offered to produce the hatchet used by him in commission of offence. He accordingly produced it from a jungle which was found blood-stained and he secured it and prepared such mashirnama Exh.
29. He got 164 Cr. P. C. Statements of P. Ws. Amir Bux, Mst. Amnat, Abdul Khalique, Mst. Dhayani and Ghulam Qadir recorded before the mukhtiarkar & F. C. M. Mehar.
He handed over the papers on completion of the investigation to the S. H. O. Who challaned the accused in the Court. The blood-stained earth and hatchet secured from the accused was sent to the Chemical Analyser for report. He produced Exhs. 35, 23, 26 to 29.
4. The prosecution case is based on the ocular testimony of the complainant Hamzo, Mst. Dhayani (P. W. 1), Mst. Amnat (P. W. 2), Amir Bux (P. W. 3), Abdu'! Khalique (P. W. 4), Abdul Karim (P. W. 8) who is mashir of injuries, scene of offence arre3t of the accused and production of the blood-stained hatchet by the accused. Dr. Shamsul Haq is the Medical Officer who has produced the post- mortem notes Exh. 33, Atta Muhammad (P. W. 10) is the Investigation Officer.
5. The accused however denied the allegations and further stated that the P. Ws. Were inimical to him.
6. The point for determination is whether the accused intentionally murdered the deceased Luqman or he killed him under grave and sudden provocation.
7. There is no doubt that the deceased Luqman died as a result of incised injury i. e. 4' x J' brain deep resulting in shock and haemorrhage. Dr. Shamsul Haq P. W. 9 who performed the autopsy has been examined. He has stated that the death of the deceased Luqman was due to shock and haemorrhage resulting from the abovesaid injuries. He has also produced the post-mortem notes Exh. 33.
8. I will first of all examine the evidence on record. The complainant Hamzo is not an eye-witness but he has come on the scene of offence on hearing commotion and cries from the directions of his house. He is cousin of the deceased Luqman. When he came on the spot, he found the deceased Luqman lying injured in front of the house of the accused Buxial. P. Ws. Amir Bux, Abdul Khalique, Ghulam Kadir Mst. Dhayani and Mst. Amnat were already present there Mst. Dhayani and Mst. Amnat informed him about the incident. He has also admitted that people of other castes like Chandio, Machi, Lakhiar and others also lived in his village. Mst. Dhayani P. W. 1, Mst. Amnat P. W. 2 who are eye-witnesses have supported the prosecution case to the extent that it was the accused Buxial who inflicted hatchet injury to the deceased Luqman. Mst. Dhayani has further stated that there was no dispute with the accused and no untoward incident had taken place on part of the accused before this incident. The passage in question was infront of the house of the accused and was being used by him for storing `Palal' and tethering of his cattle. Mst. Dhayani has stated that the deceased Luqman is son of cousin of Mst. Amnat. P. W. Abdul Khaliq is son of her husband's brother whereas P. W. Abdul Karim and Ghulam Qadir are ralated to her. It has also been admitted by her that 100 to 150 persons collected on the spot. They were people of different castes. The incident took place at the outer gate of the house of the accused and the hatchet was lying at the entrance of gate of his house. There are 100 houses in her village. The house of Luqman was situated at a distance of 120 paces from the house of the deceased. Mst. Amnat has admitted that the deceased Laqman had exchanged harsh words with the accused in the scuffle. Amir Bux P. W. 3 has also stated that he saw the accused Buxial giving a hatchet blow on back of the head of the deceased Luqman. Abdul Khaliq who is another eye-witness also supported Amir Bux on the point that it was the accused who inflicted injury on the head of the deceased. Abdul Khaliq has admitted that deceased is his maternal uncle whereas Mst. Amnat is bit-cousin and Mst. Dhayani is his grandmother. Muhammad Hashim is Tapedar who has prepared the sketch of the scene of offence and it's surroundings. Abdul Karim P. W. 8 who is mashir has supported the prosecution case for injuries on person of the deceased Luqman, scene of offence, arrest of the accused and production of blood-stained hatchet by him.
8-A. I have heard the appellant who has been produced from the Jail today. He has denied to have given injuries to the deceased. He has further stated that he has been falsely implicated in the F. I.
R. Of this case along--with three others who were not challaned by the Police.
9. Mr Niaz Ahmed Khan, the learned counsel appearing for the State has stated that the prosecution has failed to produce independent witnesses in spite of the fact that persons of different castes had collected at the scene of offence. The incident is of a broad daylight in the village consisting of about 100 to 150 houses still not a single independent witness has been produced in this case. It has also been admitted by the prosecution witness that there was no dispute of the accused prior to the incident and no untoward incident had taken place prior to it. All the witnesses being closely related and interested have suppressed the actual facts which happened prior to inflicting of a hatchet blow by the accused. There is no doubt that the hatchet injury has been given by the accused but without any premeditation. It has also been contended by him that the accused has inflicted the injury to the deceased - Luqman after he has been provoked by him. It has also been pointed by him that the hatchet was also lying at the scene of offence which was used by the accused when he was provoked by the deceased. The complainant himself admitted that the complaint filed by him was also dismissed. The learned counsel for the State is therefore of the view that the offence in no case falls under section 302, P. P. C. But one under section 3N, Part I, P. P. C. As far as the sentence is concerned, the appellant has remained in custody as an under trial prisoner for a period of one year and two months and has also served out the sentence of nearly two years and six months. Therefore the sentence already undergone by the accused will meet the ends of justice under the circumstances of the case.
10. I have considered the explanation advanced by the appellant and also the contentions of the learned counsel for the State. I have read the evidence on record. It is undoubtedly true that the incident being of a broad daylight particularly in the village consisting of about 100 to 150 houses still not a single independent witness has come forward to support the prosecution case. It has also come in evidence on record that about 100 persons of different castes collected on commotion and cries at the scene of offence. The fact that no one from them has been cited or examined in support of the prosecution case, it undoubtedly creates suspicion in the mind at least to the extent that the facts and circumstances leading to inflicting of injury to the deceased have been suppressed by the prosecution. It is also admitted position that all the material witnesses particularly on ocular testimony are air related and interested fitter se. I am therefore in agreement with the learned counsel for the State on this point that the prosecution has not come with clean hands in respect of factors prior to inflicting of the injury to the deceased. Therefore appraisal of evidence has got to be made keeping in view their admission on record. It has been admitted by Mst. Amnat who is very closely related to the deceased that there was exchange of harsh words between the deceased and the accused which flared up to such an extent that it resulted in the present incident. It is also true that there was no enmity between the accused and the deceased prior to the incident. The circumstances undoubtedly are such that it would very safely be said that the appellant had no intention to commit murder of the deceased. There is only one injury on the deceased which showed that the appellant had no intention of causing death or even causing such bodily injury likely to cause death. This is therefore a case where the appellant could at best be saddled with the knowledge that the hatchet blow was likely to cause death but of course there was no intention to cause' death or to cause such bodily injury likely to cause death. It is therefore clear that the single hatchet blow given on the head of the deceased was without any malice.
Moreover there is no medical report showing that the injury was sufficient in ordinary course to cause death. The learned counsel for the State has also fairly conceded that the offence was not murder but culpable homicide not amounting to murder.
For the foregoing reasons I alter the conviction of the appellant from section 302, P. P. C. To one under section 304-I1, P. P. C. Regarding sentence the appellant has remained in custody for the period of about three year and eight months. It will therefore meet the ends of justice to reduce hi sentence to one already undergone by him.
1n the result, I accept this appeal only to the extent of altering the conviction from section 302, P. P.
C. To one under section 304-I1, P. P. C. And modify his sentence to one already undergone by him.